State Ban Captures Disposable, Flavored Vapes

BOSTON – New federal restrictions on e-cigarettes leave out non-refillable, disposable vaping products, an omission some anti-tobacco advocates have characterized as a blind spot or a loophole.

The 2019 Massachusetts tobacco control law, however, does specifically apply to disposable e-cigarettes, banning the sale of flavored ones and imposing new limits on the sale of unflavored ones.

The Food and Drug Administration in January announced it had finalized an e-cigarette enforcement policy that prohibits the sale of all flavored "electronic nicotine delivery systems" that are currently on the market, except for tobacco and menthol flavors. The policy, which the agency began enforcing this month, is not a permanent ban; e-cigarette makers can apply for authorization from the FDA to market their products legally.

Since then, the fact that the policy leaves out single-use vapes -- and the potential for teens to switch from the refillable devices it targets to disposable ones -- has garnered national media attention.

Former FDA Commissioner Scott Gottlieb, in a Washington Post op-ed, described the disposable vapes, sold under names like Puff Bar, as "sleek devices" that "deliver a high nicotine hit, come in fruity flavors and are rapidly gaining popularity among kids." The American Lung Association called the exclusion "a loophole that must be closed to protect kids."

In Massachusetts, policymakers appear to have considered disposable vapes as part of their efforts late last year to restrict e-cigarette sales amid a national outbreak of lung illnesses.

The November 2019 law "specifically contemplates" single-use devices, a state Department of Public Health spokeswoman said.

The law prohibited sales of all flavored tobacco products, except for on-site consumption at licensed smoking bars. That ban applies to both traditional cigarettes and what the law refers to as "electronic nicotine delivery systems."

An electronic nicotine delivery system is defined in the law as an "electronic device, whether for 1-time use or reusable, that can be used to deliver nicotine or another substance to a person inhaling from the device including, but not limited to, electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, vaping pens, hookah pens and other similar devices that rely on vaporization or aerosolization."

Regulations that use the same definition are up for a vote at a Public Health Council meeting on Wednesday.

The vote is on a final version of regulations the council approved in December on an emergency basis. Among other measures, they require shops that sell vaping products to post signs warning of the dangers of severe lung disease and other health risks, and keep all vaping products behind the counter; prohibit the sale of out-of-package tobacco or vaping cartridge refills; clarify the public health commissioner's authority to prohibit the sale of a vaping product that is determined to cause vaping-related lung illness or otherwise pose a substantial health risk; and set out a series of fines and punishments for anyone who violates the rules.

Baker on Jan. 31 filed a supplemental spending bill (H 4354) that included $2 million for the Department of Public Health to implement the new tobacco law.

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